COFFEY v. SHIOMOTO

Appellant’s Petition for Review

Cal.September 25, 2013

SUPREME COURT / ; FIL foo c Cap st CRC . ED CASE NO. Frank A. McGuire Clerk IN THE SUPREME COURT OF CALIFORNIA Deputy 7 ASHLEY JOURDAN COFFEY, PY OnnLL ~Appellant-andPetitromer, VS. GEORGE VALVERDE, DIRECTOR, CALIFORNIA DMV Dr-KkAan+ ¥ Respondent. PETITION FOR REVIEW After a Decision by the Court of Appeal Fourth Appellate District, District Three Case No. G047562 On Appeal from the Superior Court of California, County of Orange, The Honorable Robert J. Moss, Judge. Case No. 30-2012-00549559 Chad R. Maddox, SBN 206204 Law Offices of Chad R. Maddox 5120 E. La Palma, #207 Anaheim Hills, CA 92807 Telephone: (714) 695-1500 Facsimile: (714) 695-1700 Attorney for Appellant and Petitioner Ashley Jourdan Coffey TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES. ........csescssessessesssesseeeeesesseeeeseetsesaseaenasseees iii ISSUES PRESENTED........ccscsscecseseeseesresseeeseeesseeneeaeesessenaeenaesssereneeneesees 1 INTRODUCTION......ceccccccesceceeseeeeeeeeseesseenssensssenseesaeseseassecsassasesseneevenes 1 WHY REVIEW SHOULD BE GRANTED......eccecceeteeeteetreteettteneeneetees 3 FACTUAL AND PROCEDURALHISTORY......ccccctceseereettseseeeeeees 5 A. The Fact.......ccccsccssessscscceeesecssecesessessessessnsesscessceasesseeasersesseeesssessenesenees 5 B. Procedural History .........cccscescsesessessessceseeeseseessneessesseesaesesesssnesereeenges 8 C. The Court of Appeal Opinion ........ccc cceeeeeeeeeeteeteeereetsereteeeneesnes9 ARGUMENT.......cccccscssssssessesecsceneesetsesssscesessessecnsessesssceesseneceeesaessaonsongees 11 I. THE GENERAL LEGAL FRAMEWORK ATISSUE...eee11 Il. THE WEIGHT OF THE EVIDENCE DOES NOT SUPPORT A FINDING THAT THE PETITIONER’S BAC WAS0.08 PERCENT OR MORE .....ccscscsssssssseccesctscscesesessssecessssnesenesseeseeneenesasseseessesseeeeeesnes 12 A. The EvidenceofPetitioner’s BACat the time of Driving................ 12 B. The Court of Appeal Created a Test Contrary to Established Law ..14 . Petitioner’s BAC could not have been 0.08 Percent or moreat the time of Driving Because there was Substantial Evidence her BAC WAS RISING ......ccccesceeseeseteesresecsssenesseneeseenesseesecnacseetsereeesseneseesenseseeeeges 16 . The Court of Appeal’s Reliance on Burg was Misplaced................ 17 The Court’s Reliance on Fuenning Fails to Appreciate the Critical Factual Differences to the Present Matter............ccccceeeeesserseeteees 18 Whenthere are two Reasonable Evidentiary Inferencesthatare Reasonable, the Inference Favoring the Petitioner must be Given ..21 CONCLUSION .uu.cccecceccccceseceeeeeeseeeeseeeeeseeesaeseeeesessaaseanensaneesseesegaeeenaaey22 il TABLE OF AUTHORITIES Cases Baker v. Gourley, 98 Cal. App. 4th 1263 ( 2002).........eceseseteseernenees 5,19 Berlinghieri v. Dep’t of Motor Vehicles, 33 Cal. 3d. 392 (1983) ..........44 12 Brenner v. Dep’t ofMotor Vehicles, 189 Cal. App. 365 (2010)............ 4,18 Brown v. Brown, 83 Cal.App. 74 (1927)... .scssssssessecersestessnseteerseenessseess 17 Burg v. Municipal Court, 35 Cal. 3d 257 (1983)......cccccscssseeseetessereeteeeeenes 15 Coombsv. Pierce, 1 Cal. App. 4th 568 (1991)...cccceeeereetteeteeeeereteeeens 12 Craig v. Brown & Root, 84 Cal. App. 4th 416 (2000)........ ce eeeeeereseeserees 13 Fuenning v. Super Ct. In & For Cty. Of Maricopa, 680 P.2d 121 (Ariz. 1983)ceceeee ceseeteenseseseeseeeseeeesnerersees 15, 19, 20 Harris v. Industrial Acc. Com., 204 Cal. 432 (1928)... .ceecccecesseeseneeneeens 17 Hart v. Burnett, 15 Cal. 530 (1860) 0.eeeececeeceneeeeenseneeereneeceeeeneeenes 17 Helmandollar v. Dep't of Motor Vehicles, 7 Cal. App. 4th 52 (1992)......... 4 Hills v. Superior Court, 207 Cal. 666 (1929).......ccceccesseessessnsenersestneereenes 17 In re Heather B., 9 Cal. App. 4th 535 (1992)... cccssseseneseesreresetseseseeens 13 Lake v. Reed, 16 Cal. 4th 448 (1997) .ceciccescssessrecssteesesseeerseeeseeeressnans 12 Laguna L. & W. Co. v. Greenwood, 92 Cal.App. 570 (1928)... 17 Norris v. Moody, 84 Cal. 143 (1890).....ccccsesesseceenereeeereensescneeseteenessens 17 Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333 (1933) ........uses 22 People v. Bejasa, 205 Cal. App. 4th 26 (2012)...cesseseeetreeeees 4,18 People v. Warlick, 162 Cal. App. 4th Supp. 1 (2008) «0... .ssssscseseeeseeeens 13 Santos v. Dep't of Motor Vehicles, 5 Cal. App. 4th 537 (1992)........cseseee 5 Showalter v. Western P. R. Co., 16 Cal. 2d 460 (1940).......ceeceeeeeeeeenees 22 Yordamlis v. Zolin, 11 Cal. App. 4th 655 (1992)... .ccsesesseseeeeesenerereeseres 5 iii Statutes Vehicle Code section 13353.2(a)(1) ......essescesseeeereeseeeerseeseaesersetneerennecags 11 Vehicle Code section 13353.2(d)....ccssserrseecrecessstcnersessrserssssreseeeees 11 Vehicle Code section 13557(b)(2) ......essssccessseesseressesneeetseeessenessneeeenenees 11 Vehicle Code section 13557(b)(3) .....eesscesceesssesessnecesenneeserescensasesneeeersnees 11 Vehicle Code section 13558 oc. cceeessessessscessecessneeeensnnesesesensseseseserenaees 11 Vehicle Code section 13559 oo... .eceeesscssssescersesessenecsseeesenecenesssessnasensesenes 12 Vehicle Code section 23152(b)........:ceeesesssccsssrecesseeeeesseneecsseecssneesnseasessaes 11 Other Authorities Calif. Dep’t of Motor Veh., Annual Reportofthe California DUI ManagementInformation System 57 (January 2013), at http://apps.dmv.ca.gov/about/profile/rd/r_d_report/Section_5/S5-243.pdf. veceaceuaceceeatcusucaeveususssssseeenaneeaeessseaeeseeeeeecersesaeessaeeeseeesesaesesnesaaeesegeeeesenseeengees 3 Calif. Dep’t of Motor Veh., California Administrative Per Se Facts 3 (April 18, 2013), at http://apps.dmv.ca.gov/about/profile/rd/2012_aps.pdf......... 3 Treatises Taylor, Cal. Drunk Driving Defense (3d ed. 2001) Forensic Chemist: Blood-Alcohol, § 11.1.1, pp. GLO-O1 1]... eeeecsseeeeteertreeereertesraeeceneesenes 4 iv To the Honorable Chief Justice and Associate Justices of the Supreme Court, Petitioner seeks review of the August 15, 2013 published decision of the Fourth District Court of Appeal, Division Three (Acting Presiding Justice William W. Bedsworth, Associate Justice Raymond J. Ikola, and Associate Justice Eileen C. Moore), which denied a petition for rehearing on September9, 2013. ISSUES PRESENTED (1) Whether the Court of Appeal committed error by creating a new standard of review rather than applying its “independent judgment” to a question of law? (2) Can circumstantial | evidence tending to prove alcohol impairment and a chemical test of 0.08 percent blood alcohol content (BAC) fifty-six minutes after driving establish, by a preponderance standard, that a driver had a BAC of 0.08 percent at the time of driving, where the 23152, subdivision three-hour presumption in Vehicle Code section (b), had been rebutted by substantial evidence?| _ INTRODUCTION The published decision of the Court of Appeal at issue created a new standard of review related to rebuttable presumptions. Specifically, previous law established further effect, and the fact that once a presumption is rebutted, it has no finder must decide the facts without regard to the presumption. The published decision in this case essentially holds that Lice[I]t is a rebuttable presu by weight, of alcoholin hi mption that the person had 0.08 percent or more, s or her bloodat the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcoholin his or her blood at the time of the performance of a chemical test within three hours after the driving.” Veh. Code § 23152(b). 1 once the presumption is rebutted, the fact finder must merely decide if the evidence is “consistent” with the previously presumedfact. Additionally, the Court of Appeals failed to apply the correct standard of review by looking for substantial evidence to support the trial court’s answerto a legal question. The proper review should have determined: 1) Whether the trial court’s finding of facts were supported by substantial evidence; AND 2) Whether those facts, reviewed de novo, amounted to a preponderance,or weight of the evidence. The Court of Appeal only looked for evidence “consistent” with the factual findings and failed to apply the de novo standard. This case focuses on the BACofa driver legally required to suspend her driver’s license. Fifty-six minutes after Appellant/Petitioner, Ashley Jourdan Coffey (Petitioner), was arrested for driving under the influence of alcohol (DUI) she completed evidentiary chemical breath test with a BAC result of 0.08 percent. Three minutes later, another showed 0.09 percent. Approximately 24 minutes later, Petitioner completed an evidentiary blood test with results of 0.095 percent and 0.096 percent. At Petitioner’s DMV Administrative Per Se (APS) hearing, additional evidence included circumstantial evidence of impairment — erratic driving, and field sobriety tests (FSTs). Petitioner called an expert, whom testified that based on all the chemical test evidence, Petitioner’s BAC was below 0.08 percentat the time of driving. The DMV upheld the suspension, and Petitioner sought an administrative writ of mandate in the Superior Court. The trial court denied the petition for writ of mandate stating, even assuming the three-hour presumption had been rebutted, “there was sufficient evidence based on the alcohol tests and other circumstantial evidence to... support the DMV hearing officer’s decision under the weight of the evidence.” The Court of Appeal held the three-hour presumption was rebutted by the testimony of Petitioner’s expert witness that Petitioner’s BAC was rising and was 0.07 percentor less at the time of driving. However, the Court of Appeal then affirmedthetrial court’s denial of Petitioner’s writ of mandate by concluding there was circumstantial evidence to support the trial court’s conclusion. While there was circumstantial evidence that reasonably inferred Petitioner was possibly impaired, there was no evidence correlating the circumstantial evidence to any level of BAC. Even if it is reasonable to infer that a person’s BAC was 0.08 percent 56 minutes before a test showing 0.08 percent, it is thereafter a question of law, requiring de novo review, to determine if that allowable inference amounts to a preponderance. WHY REVIEW SHOULD BE GRANTED This case potentially affects thousands of California drivers every year. In 2012 there were 164,274 APSactions initiated for persons allegedly driving with a BAC of 0.08 percent or more. (Calif. Dep’t of Motor Veh., California Administrative Per Se Facts 3 (April 18, 2013), at http://apps.dmv.ca.gov/about/profile/rd/2012_aps.pdf.) DMV imposed suspensionsin 148,687 of those actions.” Id, Presumably, the DMV relied on the three-hour presumption codified in subdivision (b), of Vehicle Code section 23152, in a majority of those of those cases because the DMVis * The average numberofannual 0.08 percent or more BAC APSactions taken between 2001 and 2011 is 160,433, with a low of 146,291 in 2001 and a high of 182,152 in 2008. (Calif. Dep’t of Motor Veh., Annual Report ofthe California DUIManagement Information System 57 (January 2013), at http://apps.dmv.¢ca.gov/about/profile/rd/r_d_report/Section_5/S5- 243.pdf. | 3 statutorily prohibited from imposing an APS suspension unless a person’s BACis 0.08 percent or mare. Each time the DMV ptoposes to take action based upon the three-hour presumption, the potentialof a rising blood-alcohol defense presents itself. The rising blood-alcohol defense is well recognized in criminal cases and APS hearings alike. People v. Beltran, 157 Cal. App. 4th 235 (2007); Helmandollar v. Department of Motor Vehicles, 7 Cal. App. 4th 52, 55 (1992); see Taylor, Cal. Drunk Driving Defense (3d ed. 2001) Forensic Chemist: Blood-Alcohol, § 11.1.1, pp. 610-611. The Court of Appeals decision at issue has effectively changedthe legal test in each of these cases, from what the weight of the evidence proves, to a determination of whether the circumstantial evidence is consistent with a 0.08 percent inference, essentially abrogating the defense. In addition, the Court ishould grant review to resolve conflicts between the courts of appeal. In the present matter, the Court of Appeal has held erratic driving, “failed” FSTs, “objective indications of intoxication,” and a valid chemical test of 0.08 percent 56 minutes after driving can establish a BACof 0.08 percentat the time of driving sufficient to warrant the taking of a license. Many prior cases give rise to a different conclusion. For example: People v. Bejasa, 205 Cal. App. 4th 26, 43 (2012) [Observations of an officer such as loss of balance or slurred speech “reflects only an officer's observation of the physical manifestation of the subject's intoxication (i.e., a lack of muscular coordination).”); Brenner v. Dep’t of Motor Vehicles, 189 Cal. App. 365, 373 (2010) [While the impressions of the officer may have a bearing onplaintiff's level of impairment, they have no bearing on the precise level of his BAC.”); People v. Beltran, 157 Cal. App. 4th 235, 246, fn 10 (2007) [While there was other evidence that defendant was 4 under the influence at the time of driving, our review of the record reveals no expert testimony tying defendant's objective symptoms of intoxication (weaving, speeding, odor of alcohol, and performance on field sobriety tests) to any particular BAC.”]; Baker v. Gourley, 98 Cal. App. 4th 1263, 1264-66 ( 2002) [“But before the DMV can summarily suspend a license without court proceedings it must have the definite evidence of a valid chemical test showing blood alcohol while driving of at least .08 percent. As the DMVitself is well aware, some symptomsofintoxication can occur below the .08 percent blood-alcohol threshold.” Slurred speech, bloodshot eyes, unsteady gait without a valid chemical test cannot establish specific BAC.]; Yordamlis v. Zolin, 11 Cal. App. 4th 655, 660 (1992) [Erratic driving, odor of alcohol, bloodshot/watery eyes, slurred speech, unsteady gait and a valid chemical test of 0.17 percent taken at an unknown time after driving insufficient to establish BAC was 0.08 percent or more at driving.]; Santos v. Department of Motor Vehicles, 5 Cal. App. 4th 537, 542, 549-50 (1992) [Erratic driving, bloodshot/watery eyes, unsteady gait, slurred speech, odor of alcohol, and a valid chemical test of 0.13 percent taken at an unknown time are “no basis for an inference that respondent’s blood-alcohollevel was 0.08 or more percentat the time ofdriving.”] FACTUALAND PROCEDURAL HISTORY A. The Facts On November 13, 2011, at approximately 0132 hours, Petitioner was observed swerving while driving driving in the area of southboundState Route 55 near Baker Street. (AR 16. When Petitioner was initially contacted the officer smelled the “strong odor of an alcoholic beverage” 3 “AR”references are to the Administrative Record. 5 and noticed her “eyes were red.” (AR 16.) Petitioner was then administered a series of FSTs. (AR 17.) At approximately 0200 hours, based upon the observed driving and performance on the FSTs, the arresting officer “formed the opinion that [Petitioner] was under the influence of an alcoholic beverage and was unable to safely operate a motor vehicle upon a highway. [Petitioner] was placed under arrest for 23152 (a) V.C..” (AR 18.) At 0228 hours, 56 minutes after she was driving, Petitioner completed an evidentiary breath test with a BACresult of 0.08 percent; at 0231 hours, she completed an evidentiary breath test with a BAC result of 0.09 percent. (AR 13.) At 0255 hours, Petitioner completed an evidentiary blood test with a BAC result of 0.095 percent and 0.096 percent. (AR 21-22.) On February 14, 2012 Petitioner’s APShearing took place. (AR 3, 35.) DMV’s evidence consisted of Petitioner’s arrest report (AR 14-19), Petitioner’s breath test results (AR 13), Petitioner’s blood test results (AR 21-22), and the Age 21 and Older Officer’s Statement (DS367) (AR 7-9). After DMV’s presentation of its evidence, Petitioner’s expert witness testified. (AR 36.) The DMV hearing officer stipulated to expert’s qualifications. (AR 38.) The expert explained absorptive, plateau, and elimination rates of alcohol consumption. (AR 46.) The expert noted that Petitioner completed two breath tests, each increasing over the one beforeit, of 0.08 to 0.09; and then, approximately 20 to 30 minutes later, completed a blood test with results of 0.095 and 0.096. (AR 47.) The expert stated the chemicaltest results were “totally consistent with alcohol rising, or recent consumption of alcohol.” (AR 48) The expert stated Petitioner’s BAC had to berising because, “Well, it wouldn't go downand then go back up again.” (AR 51.) Hestated the only scenario in which Petitioner’s BAC wasnotrising at the 6 time she was stopped was if “her and the officer after the stop enjoyed some alcoholic beverages together” (AR 49). In regards to Petitioner’s rising blood alcohol, the expert agreed with the statement that, “[Alcohol] takes time to get into your system. And it has time to take effect and the affects your brain.” (AR44.) He went on to explain that, “You get probably a maximum effect within an hour and a half, two hours after you start drinking.” (AR 45.) The expert then opined when the totality of the circumstances of the officers’ observations of Petitioner (“no unsteady gait, no slurred speech”), her FST results, and breath and blood test results were all taken into account, it indicated Petitioner was below 0.08 percent at the time of driving: “She — the way it looks, it’s less than .08 at the time of driving.” (AR 48-49.) | The expert was asked, “[Appellant] was cooperative. Was a moderate odor of alcohol. Speech was normal. Noissues. And then you have an 08/09. And you take a look at the field sobriety tests, not that bad. I mean there’s impairment, but it’s nothing outrageous. Is this consistent with what you perceive and have seen as a scientist with someone’s alcohol rising?” (AR 47.) He replied, “Yes, it - - it - - as the time goes by your performance on thosetests gets a little poorer... You’ll be an 08 before you’re an 09” and Petitioner was 0.08 three minutes before being 0.09. (AR 47.) | The expert acknowledged that Appellant’s breath two rose from breath one, blood one rose from breath two, and blood two washigher than blood one. (AR 48.) The expert then opined that if breath one, breath two, blood one, and then blood two were plotted on a graph it “would be totally consistent with the alcohol rising, or recent consumption ofalcohol.” (AR 48.) DMV did not present any evidence after the expert testimony. 7 B. Procedural History On February 14, 2012Petitioner had a DMV APShearing. (AR 35.) Also on February 14, 2012, DMV issued its APS Notification of Findings and Decision concluding Petitioner had driven a vehicle with a BAC of 0.08 percent or more; and,ordered the suspension of her driver’s license for four months. (AR 3-5.) In the Notification, the hearing officer stated the testimony of Petitioner’s expert witness was speculative and insufficient to rebut the presumption her BAC was 0.08 percent or more. (AR 4.) On February 29, 2012 Petitioner filed a petition for peremptory writ of mandate in the Orange County Superior Court, the Honorable Judge Robert J. Moss. (CT 9-12.) On October 19, 2012 the trial court issued an order denying Petitioner’s petition stating in part, “The DMV hearing officer was entitled to reject the uncontradicted testimony of petitioner’s expert witness, and the hearing officer set forth reasons for doing so in this case.” (CT 58.) During oral arguments, in regards to the rebutting of the three- hour presumption, Petitioner’s counsel attempted to clarify the trial court’s ruling to determine if the court had exercised its independent judgment on the testimony of the expert witness or if the court was simply accepting the DMV hearing officer’s rejection of the expert opinion. (RT 1-3.)° Thetrial court stated, “The hearing officer does not have to accept an expert’s opinion... I understand what your expert said, the hearing officer wasn’t buyingit.” (RT 2.) In addition, the trial court concluded that evenif Petitioner’s expert had rebutted the presumption that her BAC was 0.08 percent or more, “there was sufficient evidence based in the blood-alcohol tests and the other circumstantial evidence based on the assessment, * “CT”references are to the Clerk’s Transcript. > “RT”referencesare to the Reporter’s Transcript page number. 8 observations and tests by the arresting officers at the scene to support the DMV hearing officer’s decision under the weight of the evidence.” (AR 58.) : On October 24, 2012 Petitioner filed her Notice of Appeal. (CT 66.) On November 9, 2012 Petitioner filed a Petition for Writ of Supersedeas or Other Appropriate Stay Order, in the Court of Appeal, requesting an immediate stay of the suspension of her driver’s license. On November13, 2012 the court issued an order staying the suspensionof Petitioner’s license pending further order of the court. Approximately seven monthsafter Petitioner filed her notice of appeal, the trial court dismissed her petitioner for writ of mandate with prejudice. (Op.5.)° C. The Court of Appeal Opinion On April 15, 2013 the Court of Appeal issued its published opinion affirming the trial court’s denial of the writ of mandate. (Op. 2.) The court began its “Discussion” by holding the trial court “was withoutjurisdiction to dismiss the petition and its act is void.” (Op. 6.) The court then stated that although trial court was to exercise its independent judgment, “The administrative findings come before the superior court with a ‘strong presumption of correctness,” and the burden rests on the petitioner to establish administrative ertor.” (Op. 7-8.) The court reversed the holding ofthe trial court in regards to the three- hour presumption, finding that the presumption had been rebutted. (Op.7.) The court stated, (Op. 10): 6 “Op.” references are to the page numberofthe filed opinion and attached to this petition. The opinion has been subsequently published at Coffey v. Shiomoto, 218 Cal. App. 4th 1288 (2013). 9 Applying the foregoing here, [Petitioner’s] expert testified based on breath and bloodtest results that [Petitioner’s] BAC was in a state of rising and thus her BAC at the time of driving was below0.08 percent. This substantial evidence rebutted the three-hour presumption and required the DMV to adduce evidenceto prove [Petitioner’s] BAC wasat least 0.08 percent at the time of driving “without regard to the presumption.” (Evid. Code, § 604.) The court then went on to state, “The issue boils down to whether nonchemicaltest circumstantial evidence can provethat [Petitioner’s] BAC at the time of driving was consistent with her BAC at the time of her chemical tests. Based on Burg, supra, 35 Cal.3d at page 266, footnote 10, we hold it can.” (Op. 11.) The court found, “The evidence of[Petitioner’s] erratic driving, failed field sobriety tests (FST's), and objective indications of intoxication are substantial evidence that [Petitioner] had a BAC equalto or greater than 0.08 percent at the time ofdriving.” (Op.2.) The court concluded its opinion with the following statement, which reads as a caution for misuse of the precedent it was setting, (Op. 15): In reaching the conclusion that the circumstantial evidence here was sufficiently substantial to support the trial court's ruling, we hasten to add that nothing about our opinion compels a fact finder to accept any particular combination of signs of intoxication as proving a particular BAC at the time of driving. Trial: courts must independently weigh the evidence and ob their own conclusions. Our holding is limited to the proposition that such evidence constitutes substantial evidence sufficient to sustain such a finding in the presence of a valid BACtest taken a reasonable time after driving. On August 30, 2013 Petitioner filed a Petition for Rehearing in the Court of Appeal. On September 9, 2013 the Court of Appeal denied the petition. 10 ARGUMENT 1. THE GENERAL LEGAL FRAMEWORK ATISSUE. Vehicle Code section 13353.2, subdivision (a)(1), mandates that the DMV suspendthe driver’s license when, “The person was driving a motor vehicle when the person had 0.08 percent or more, by weight, of alcoholin his or her blood.” There is no provision for the DMV to administratively suspend the driver’s license of a person who is under the influence, but whose BACis below 0.08 percent. Subdivision (b), of Vehicle Code section 23152 provides a rebuttable presumption that if a person chemical test with a result of 0.08 percent or more within three-hours of driving, that the person’s BAC was 0.08 percent or moreat the time ofdriving. The DMV must makea determination of the facts requiring suspension on the basis of the peace officer's sworn report. Veh. Code § 13353.2(d). It must then determine by a preponderance of the evidence whether the peace officer had reasonable cause to believe the driver violated section 23152; the driver was placed under arrest; and the driver had a BAC of 0.08 percent or more. Veh. Code § 13557(b)(3). This determination is final unless the driver timely requests a hearing. Veh. Code § 13557(b)(2). Uponthe driver's timely request, the DMV must hold an administrative hearing (APS hearing) at which the evidenceis not limited to that presented at the prior administrative review. Veh. Code § 13558. "The only issuesat the hearing on an order of suspension pursuant to Section 13353.2 shall be... whether the arresting officer had reasonable cause to believe the person was driving, the driver was arrested, and the person was driving with .08 percent BAC or higher.” Lake v. Reed, 16 Cal. 4th 448, 456 (1997). At the APS hearing, the DMV bears the burden of proof to establish the validity of the suspension: ll Section 13558] says nothing about the driver starting the hearing with such a burden. Quite the contrary, one of the stated legislative purposes of the enactment was to protect against erroneous deprivation of one’s driving privilege is by providing an opportunity for a “full hearing”. (Stats. 1989, Ch. 1460, Section 1). Moreover, the Supreme Court has established in somewhat analogous DMV proceedings that, although mere reports presented without proof of reliability sufficed to support an initial summary finding of license suspension, once “the Petitioner requests a hearing, the . report is itself insufficient to establish a prima facie showing of the facts supporting the suspension of a driver’s license.” (quoting, Daniels vs. Department of Motor Vehicles, 33 Cal. 3rd 532, 541 (1983).) Coombs v. Pierce, 1 Cal. App. 4th 568, 580-81 (1991). The DMV’s determination is then subject to judicial review. Veh. Code § 13559. “In ruling on an application for a writ of mandate following an order of suspension or revocation, a trial court is required to determine, based onits independent judgment, " ‘whether the weight of the evidence supported the administrative decision.” Lake, 16 Cal. 4th at 456; Berlinghieri v. Dep’t of Motor Vehicles, 33 Cal. 3d. 392, 395 (1983) [In reviewing the suspension or revocation of a driver’slicense “the trial court must not only examinethe administrative record for errors of law, but also must exercise its independent judgment upon the evidence.” Tl. THE WEIGHT OF THE EVIDENCE DOES NOT SUPPORT A FINDING THAT THE PETITIONER’S BAC WAS0.08 PERCENT OR MORE. A. The Evidenceof Petitioner’s BACat the time of Driving. When evidence contradictory to a presumption is presented the “presumption disappears.” Craig v. Brown & Root, 84 Cal. App. 4th 416, 421 (2000). Once the presumption is rebutted it cannot be given further effect and, “the matter must be determined on the evidence presented.” In 12 re Heather B., 9 Cal. App, 4th 535, 561 (1992). Thus, once the three-hour presumption was rebutted, the chemical test evidence was reduced to merely direct evidence that, 56 minutes after driving, Petitioner’s BAC was 0.08 percent. It is also circumstantial evidence of some level of concentration at the time of driving. People v. Warlick, 162 Cal. App. 4th Supp. 1, 7 (2008). | There was additional evidence of Petitioner’s BAC at the time of driving. There was the evidence that Petitioner’s BAC was below 0.08 percent at the time of driving: Expert testimony that her BAC wasrising; expert testimony that her BAC was below 0.08 percent at the time of driving; the expert’s testimony that alcohol takes time to effect the brain and maximumeffect is within an hour and a half to two hours; the expert’s opinion that the arresting officer’s observations of Petitioner, her FST results, and chemical testsall indicated she was below 0.08 percent; and the expert opinion that Petitioner’s BACcould not have gone down and then back up again. The Court of Appeal’s found the expert testimony to be substantial evidence that Petitioner’s BAC wasrising. There was circumstantial evidence that Petitioner was impaired: There was evidence that Petitioner was swerving while driving; that she had bloodshot/watery eyes; that she had the odor of an alcoholic beverage; that she did not have an unsteady gait or slurred speech; that the arresting officer believed she had performed poorly on the FSTs; and,that the officer arrested her because he, believed she was under the influence of an alcoholic beverage. However, this circumstantial evidence was not shown to be indicative of a particular blood-alcohol concentration. There was not any evidence that bloodshot/watery eyes begins to occur at any particular BAC; there wasnot evidence that the odor of an alcoholic beverage begins to occur at any particular BAC; there was not evidencethat 13 Petitioner’s “poor performance” on the FSTs would only occur at any particular BAC or higher; and, there was not any evidence that swerving while driving would occuronly at any particular BAC or higher. B. The Court of Appeal Created a Test Contrary to Established Law. The Court of Appeal stated: “This substantial evidence rebutted the 3- hour presumption and required the DMV to adduce evidence to prove [Petitioner’s] BAC wasatleast 0.08 percent at the time of driving ‘without regard to the presumption.” The court then stated, “The issue boils down to whether non-chemical test circumstantial evidence can prove that [Petitioner’s] BAC at the ‘time of driving was consistent with her BAC at the time of her chemicaltests.” Stating the issue that way creates a test which is contrary to established law. Such a test inherently changesthe current legal standard of proof from a preponderance, or weight of the evidence test, to a mere consistency test under certain circumstances. Specifically, such a holding requires a finding, in every case, that the driver’s BAC was 0.08 percent or more at the time of driving where there is a valid chemical test of 0.08 percent or more, unless the non-chemical circumstantial evidence proves the two BAC’s are inconsistent with each other. It would have been more harmonious with the applicable legal standard to state the issue similarly to, “The issue boils down to whether non-chemical test circumstantial evidence can prove, by the weight of the evidence, that [Petitioner’s] BAC at the time of driving was equal to, or higher than, the BAC results, which exceeded the 0.08 percent limit, at the time of her chemical tests.” As currently stated, the court’s holding places an illogical and impossible burden on thedriver in any APS hearing. Specifically, it places a burden on a driver (even after rebutting the 3-hour presumption) to show that the 14 circumstantial evidence proves the BACat time ofthe chemical testing is inconsistent with a presumed BACof0.08 percent at the time ofdriving. Moreover, accurately stating the true legal test highlights the flaws in the court’s analysis. The court relied on an unreasonable inference that the driver’s BAC at the time ofdriving is the same as the BACat the time of the chemical test. Using that unreasonable inference, it then looked to the record for evidence which was “consistent” with that unreasonable inference. The inference is unreasonable because the court failed to appreciate that, without the three-hour presumption, it is unreasonable to infer an identical BACatthe time of driving to a chemical test taken later in time. California case law holds, as a well knownfact, and as a matter of law, that BAC changes rapidly over time. Therefore, to start the analysis with an inference that the driver’s BAC wasequalat the time of driving to the BACat the time of testing, is unreasonable. Likewise, it is unreasonable to infer, in this case, that her BAC was higher at the time of driving than at the time of chemical testing. The court relied footnote 10 in Burg v. Municipal Court, 35 Cal. 3d 257, 266 (1983), to reach its conclusion that non-chemical test circumstantial evidence could prove Petitioner’s BAC. (Op. 11.) The Burg footnote cited to Fuenning v. Super Ct. In & For Cty. Of Maricopa, 680 P.2d 121 (Ariz. 1983), for the proposition that circumstantial evidence could be adduced to establish a specific BAC. The courts reliance on Burg and Fuenning was misplaced. See sectionsII. D and E, post.) The Fuenning court essentially held that where a driver was observed to have an inability to stand without help, nausea, and dizziness, all closer in time to driving than the chemical test taken “hours” later, that it was reasonable under those circumstances to infer the chemical test would produce a result lower than what the driver’s BAC wasat time ofdriving. 15 | | |\ I i ! Here, the observations did) not include such drastic signs of impairment as an inability to stand, nausea and dizziness. The observationsin the case at bar maybesufficient to support an inference that the driver was impaired, but to go so far as to say it supports an inference that the driver was higher at the time of driving than the time of the tests, beginning just less than an hour after driving, goes too far. There is no nexus between those facts and that inference. There is no explanation in the record as to why it is more probable orlikely that thedriver’s BACwasfalling from the time of those observations and the time of the chemical test. Moreover, there was only one chemicaltest of 0.11 percent in Fuenning hours after driving, which is quite different than the facts here where there were many tests over a span of 27 minutes. : Finally, the court gave too much weight to the non-chemical test evidence in this case. While it may be common knowledgethat the effects of alcohol cause “symptoms of intoxication,” it is not common knowledge which symptoms appear at any given level, which symptoms appear at levels below 0.08 percent, or which symptomsappearat levels above 0.08 percent. While relevant to impairment, they are not relevant to a specific alcohol level without some indicia of evidence in the record demonstrating a correlation to a specific alcohol level. C. Petitioner’s BAC could not have been 0.08 Percent or more at the time of Driving Because there was Substantial Evidence her BACwasRising.| The court held that Petitioner’s expert “testified based on breath and blood test results that [Petitioner’s] BAC wasin a state of rising and thus her BACat the time of driving was below 0.08 percent. This substantial evidence...” “[R]ising alcohol basically means that a person's blood alcohol concentration is increasing over time. And the defense part comes 16 in, in that perhaps if a test was done at sometimeorperiod after the driving occurred, typically a longer period of time, like let's say two hours, that possibly at the time of driving, the person's actual BAC wasbelow [0].08.” Beltran, 157 Cal. App. 4th at 246. It “is strong forensic evidence” when there is evidence of one chemical test rising from a prior test coupled with expert testimony that a petson’s BACwasbelow 0.08 percentat the time of driving. The court’s holding directly supports that Petitioner’s BAC was below 0.08 percent at the time of driving. Petitioner’s first breath test was 0.08. Her BAC wasrising. Therefore, her BAC must have been below 0.08 prior to the test or else it could not have rose to 0.08. Anything below 0.08 percent, even 0.079, does not empower the DMV to suspenda license. D. The Court of Appeal’s Reliance on Burg was Misplaced. It is fundamental doctrine that a decision is not authority for what is dicta within the opinion but only for the points actually involved and actually decided. Norris v. Moody, 84 Cal. 143, 149 (1890); Hart Burnett, 15 Cal. 530, 598 (1860). The statement of a principle not necessary to the decision will not be regarded either as a part of the decision or as a precedent that is required by the rule ofstare decisis to be followed. Brown v. Brown, 83 Cal.App. 74, 81 (1927); Hills v. Superior Court, 207 Cal. 666, 670 (1929); Laguna L. & W. Co. v. Greenwood, 92 Cal.App. 570, 574 (1928); Harris v. Industrial Acc. Com., 204 Cal. 432, 438 (1928). Thus, the Court of Appeal should not have rendered an opinion “based” on a footnote in Burg where it was dicta inconsistent with other authorities. : “While the impressions of the officer may have a bearing on plaintiff's level of impairment, they have no bearing on the precise level of his BAC.” Brenner, 189 Cal. App. At 373 (See also, Bejasa, 205 Cal. App. 4th at 43 17 [Observations of an officer such as loss of balance or slurred speech “reflects only an officer's observation of the physical manifestation of the subject's intoxication(i.e., a lack of muscular coordination).”]; Beltran, 157 Cal. App. 4th at 246, fn 10 [““While there was other evidence that defendant was under the influence at the time of driving, our review of the record reveals no expert testimony tying defendant's objective symptoms of intoxication (weaving, speeding, odor of alcohol, and performance on field sobriety tests) to any particular BAC.”}.) Brenner, Bejasa, and Beltan are on point with the present matter and support that the observations of Petitioner’s arresting officer do not amount to any evidence of a specific BAC,let alone substantial circumstantial evidence of Petitioner’s BAC. Thus,it is not reasonable to conclude there is “substantial evidence” to support the trial court’s finding that the preponderanceof the evidence wasthat Petitioner’s BAC was 0.08 percent at the time of driving based on a Burg footnote. The only evidence of Petitioner’s specific BAC at the time of driving was the circumstantial evidence that her BAC was 0.08 percent 56 minutes after driving. However, under two separate theories, Petitioner’s expert firmly established that Petitioner’s BAC would have been below 0.08 percent at the time of driving. At best, this competing evidence could only bea tie; a tie is not a preponderance; therefore, there was not substantial evidence to support the trial court’s decision. | E. The Court’s Reliance on Fuenning Fails to Appreciate the Critical Factual Differences to the Present Matter. In In Baker v. Gourley, 98 Cal. App. 4th 1263, 1270 (2002) the court warned of the danger of lost meaning when one court paraphrases another. Here, the Court of Appeal noted that Burg cited to Fuenning for the proposition that, “Of course, both parties may also adduce other | | 18 circumstantial evidence tending to establish that the defendant did or did not have a 0.10 percent blood-alcohol level while driving.” The court, at page 12, then went on to quote from Fuenning, 680 P.2d at 130: Evidencethat at that time the person charged smelled strongly of alcohol, was unable to stand without help, suffered from nausea, dizziness or any other ‘symptoms’ of intoxication would justify an inference that a test administered some time after arrest probably produced lower readings than that which would have been produced had the test been administered at the momentofarrest. However the court “paraphrased” by omitting the immediately preceding sentence from Fuenning, “Defendant attacked the results, presenting evidence regarding margin oferror, time lapse and otherfactors. Such evidence might raise considerable doubt whether the test result of.11% indicated .10% or greater BACatthe time defendant wasarrested”; as well as the sentence immediately following,Id.: The converse is also true. Evidence that at the time ofarrest defendant was in| perfect control, displayed none of the symptoms of intoxication and had not driven in an erratic manner, is relevant to show that a reading of.11% from test given some time later does not prove beyond a reasonable doubt that the defendant was driving with a.10% or greater BACatthe timeofhis arrest. Similar to the instant matter, in Fuenning, there was expert testimony that, Id. at 124-25: | | The speed at which the body absorbs alcohol is affected by the presence or absence of food in the stomach. When the stomach is empty of food, alcohol is absorbed much more quickly. The test can only measure the amountof alcohol in the blood at the time of the test, not at the time of the event. If a person has had several drinks during dinner, is arrested while driving soonafterward, and given an | 19 intoxilyzer test an hour or twolater, the test is likely to show a considerably greater BAC than that which existed at the time ofarrest. [Emphasis added.] The statutory BAC at issue was 0.10 percent. Id. at 130. Fuenning’s BAC was 0.11 percent. Id. at 124, The Fuenning court noted that “Reaching the chemical level of .10% requires consumption of a number of drinks (as muchas a pint of whiskey, one to two six packs of beer, or a quart of wine) in a period of twoor three hours.”Id. | In addition, the evidence was not that the arresting officer merely detected “the smell of alcohol and gavefield sobriety tests,” Id. at 124, but also included a videotape showing Fuenning’s behavior at the time of booking and testimony from the arresting officer that Fuenning was “*Drunk,’ ‘intoxicated,’ and ‘under the influence.’” Id. at 130. But significantly noteworthy, the court specifically stated that “the probative value of terms like “drunk,” “intoxicated,” and “under the influence” in a “per se case would beslight” and cautionedtrial courts from admitting this type of evidence in determiningperse cases. Id. at 131. Most importantly, Fuenning never concluded that the observations of the arresting officer were sufficient evidence to establish that Fuenning was driving with a BAC of 0.10 percent. In fact, it was not even the issue before the court. The issues before the court were the “Constitutionality of the statue,” Id. at 125; “Admissibility of evidence of defendant’s conduct and behavior,” which the court specifically stated, “We need not decide,” Id.at 130; and, “Foundation for admission of test results,” Id. at 131. Thus, because it was not decided, Fuenning does not stand for the proposition that the meager observations noted by Petitioner’s arresting officer are “substantial evidence” that Appellant’s BAC was 0.08 percent or more at the time ofdriving. ! | 20 F. When there are “ Reasonable Evidentiary Inferences that are Reasonable, the Inference Favoring the Petitioner must be Given. Because the appropriate test is a “weight of the evidence” or preponderancetest, how much weight should be given to the circumstantial evidence wherethe ultimate question is a specific BAC level? Givingit the most generous amount of weight, it should only be viewed as provingit is reasonably possible that the driver had a BAC of 0.08 percentat the time of driving. But just because it is reasonable, does not makeit more likely than not — does not makeit rise to a preponderance. When the evidence gives rise to another reasonable conclusion, that Petitioner’s BAC was below 0.08 percent, the Court must find in Petitioner’s favor if they are equally likely, or if the conclusion that she was below 0.08 percent is more likely. This is the ultimate question which the Court of Appeals decision failed to correctly address. Once it found the trial court could reasonably infer Petitioner’s BAC was 0.08 percent, there was no de novo review to determineifthe evidence tipped the scales in that direction ornot. It is the DMV’s burden to establish by the weight of the evidence that Petitioner was driving with a BAC of 0.08 percent or more. If the evidence is of equal weight, the courts must favor Petitioner: [W]here proven facts give equal support to each of two inconsistent inferenves, in which event, neither of them being established, judgment, as a matter of law, must go against the party upon whom rests the necessity of sustaining one of these inferences as against the other., before heis entitled to recover. | Showalter v. Western P. R. Co., 16 Cal. 2d 460, 476 (1940) (See also, Pennsylvania R. Co.v. Chamberlain, 288 U.S. 333, 340 (1933) [When the evidence tends equally to sustain either of two inconsistent propositions, neither of thern can be said to have been established by legitimate proof. A 21 verdict in favor of the party bound to maintain one of those propositions against the otheris necessarily wrong."].) Evidence that providesa reasonable inference of a BAC Of 0.08 percent is insufficient to prove by the weight of the evidence that Petitioner’s BAC was 0.08 percent at the time of driving. The evidence must prove it was more likely than not that she was 0.08 percent at the time of driving. The Court of Appeal did not weigh the evidence properly because it cametoits ultimate conclusion,that it must upholdthetrial court’s ruling, merely upon a showing of substantial evidence that a reasonable inference may be drawn from the chemicaltest and circumstantial evidence of impairment. The proper standard would have included weighing the evidence, which in turn would have revealed no likelihood of 0.08 percent at the time of driving had been proven. CONCLUSION The Court should grant review because the opinion of the Court of Appealestablishes a new standard of review contrary to established law. The published case has a real potential to affect tens of thousands of Californians on a yearly basis. Respectfully submitted, | Dated: September23, 2013 ‘CHAD R.MADDOX i Attorney for Petitioner | ASHLEY JOURDAN COFFEY 22 CERTIFICATE OF WORD COUNT (California Rules of Court, Rule 8.204(c)(1).) The text of the memorandum consists of 6,676 (six-thousand, six- hundred seventy-six) words as counted by the Microsoft Word version 2007 processing program used to generate the brief. LeDated: September23, 2013 . DOX PROOF OF SERVICE Appellate Court Case No.: G047562 Trial Court Case No.: 30-2012-00549559 Ashley Jourdan Coffey v. George Valverde, Director, California DMV. I hereby declare that I am citizen of the United States, am over 18 years of age, an am not a party in the above-entitled action. | am employed in the County of Orange and mybusiness address is 5120 E. La Palma, #207, Anaheim Hills, CA 92807. On September 23, 2013, I served the attached document described as a Petition for Review on the party in the above namedcase. I did this by enclosing true copies of the documentin sealed envelopes with postage fully prepaid thereon, I then placed the envelopes in a U.S. Postal Service mailbox in Anaheim Hills, California, addressed as follows: Office of the Attorney General Kevin K. Hosn 300 S. Spring St. - #1702 Los Angeles, CA 90013 Judge Robert J. Moss, Orange County Superior Court, Department 23 700 Civic Center West Santa Ana, CA 92701 // H // Court of Appeal, Fourth Appellate District Division Three 601 W. Santa Ana Blvd. Santa Ana, CA 92701 I, Tobias Freestone, declare under penalty of perjury that the foregoingis true and correct. Executed on September 23, 2013, at Anaheim Hills, California. Tob reestoneae CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATEDISTRICT DIVISION THREE COURT OF APFEALATH DIST DIV 3 ASHLEY JOURDANCOFFEY, AUG 15 2013 Plaintiff and Appellant, Goa7s62.0 v. (Super. Ct. No. 30-2012-00549559) JEAN SHIOMOTO,as Chief Deputy OPINION Director,etc., Defendant and Respondent. Appeal from a judgmentof the Superior Court of Orange County, Robert J. Moss, Judge. Affirmed. Law Offices of Chad R. Maddox and Chad R. MaddoxforPetitioner. Kamala D. Harris, Attorney General, Alicia M.B. Fowler, Kenneth C. Jones, and Kevin K. Hosn, Deputy Attorneys General, for Defendant and Respondent. used his vehicle’s public address system to advise Coffey to pull over to the right. Coffey eventually slowed down and pulled over. Upon making contact, the officer immediately noticed a strong odorof alcohol emitting from Coffey’s vehicle. Coffey denied having consumedalcohol. A secondofficer arrived to perform FST’s. He immediately smelled the odorof alcohol emitting from Coffey’s person and observed Coffey’s red, watery eyes. In performing the horizontal gaze nystagmustest, Coffey displayed a lack of smooth pursuit in both eyes. In performing the walk and turn test, Coffey missed. the heel-tg-toe on five of the nine steps, turned clockwise instead of counter-clockwise, and used both feet to turn instead of one. And in performing the Rombergtest, Coffey swayedslightly in all directions, her eyes trembled, and she estimated 30 seconds at 37 seconds. The officer concluded Coffey failed the FST’s and placed her underarrest at 2:00 a.m. At 2:28 a.m., Coffey performed a breathalyzer test with a result of 0.08 percent BAC. At 2:31 a.m., she took another breathalyzer test with a result of 0.09 percent. At 2:55 a.m., she took bloodtests with results of 0.095 percent and 0.096 percent. After the arrest, the DMV issued an APS suspension order and held an evidentiary hearing where Coffey was represented by counsel. The exhibits admitted into evidence werethe arresting officer’s sworn statement (DMV form DS-367),the officer’s arrest report, and a supplemental arrest report. These exhibits detailed the circumstances recited above. 1 . . . In the Rombergtest, a suspectis “asked to standat attention, close his eyes, tilt his head back, andestimate the passage of 30 seconds. While [the suspect] perform{s] thetest, [the officer] observe[s] [the suspect’s] balance andhis ability to accurately measure the passage of 30 seconds.” (People v. Bejasa (2012) 205 Cal.App.4th 26, 33.) Coffey petitioned for a writ of mandate to set aside the suspension order. Coffey contended that her expert testimony had rebutted the 3-hour presumption of Vehicle Code section 23152, subdivision (b), by presenting expert evidence that Coffey’s BAC wasbelow 0.08 percent at the time she was driving. She further contended the DMV hadoffered no evidence to establish Coffey’s BACat the time of driving and that the DMV officer was notfree to arbitrarily reject uncontradicted expert testimony. The court deniedthe petition by way of minute order, stating, “The DMV hearing officer was entitled to reject the uncontradicted testimonyofpetitioner’s expert witness, and the hearing officer set forth reasons for doingso in this case. [Citation.] Even assumingthat petitioner Coffey rebutted the presumption under [section 23152, _ subdivision (b)], there was sufficient evidence based on the blood-alcoholtests and the other circumstantial evidence based on the assessment, observations andtests by the arresting officers at the scene to support the DMV hearing officer’s decision under the weightof the evidence.” Coffey timely appealed. Coffey also petitioned us for a writ of supersedeasstaying the suspensionofher license. We issued a temporary stay of Coffey’s license suspension. Approximately seven months later we received notice that the trial court had dismissedthe petition with prejudice. The circumstances surrounding the dismissal were that Coffey’s attorney had not appearedat a status conference held after the notice of appeal had been filed. The record is unclear, but the purpose ofthe status conference mayhave been to discuss the format of a formal judgment. The court then issued an order to show causere: dismissal, and Coffey’s attorney again did not appear,so the court dismissedthe petition with prejudice. We issued an order requesting the parties to ; All statutory references are to the Vehicle Code unless otherwisestated. Section 23152, subdivision (b), states, “it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time ofdriving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.” 5 driving. We agree sherebutted the presumption, but we find substantial evidence supports the trial court’s finding that Coffey’s BAC was at least 0.08 percent at the time of driving. “A person who operates a motor vehicle while intoxicated is subject to criminal prosecution and penalties. Prior to the criminal trial, however, the [DMV] must suspendthe individual’s driver’s license as an administrative matter if it determines the person was driving a motor vehicle with a blood-alcohol concentration . . . of .08 percent or higher.” (Lake v. Reed (1997) 16 Cal.4th 448, 451 (Lake).) “After either the arresting officer or the DMV serves a person with a ‘notice of an order of suspension or revocation of the person’s [driver’s license],’ the DMV automatically reviews the merits of the suspensionor revocation.” (/d. at p. 455.) “In those cases where the individual requests an administrative hearing, whether he or she was driving with a prohibited BACis often proved bythe introduction into evidence of the arresting police officer’s sworn report describing the circumstancesofthe arrest, together with the results of a breath test administered by the officer.” (/d. at p. 451.) To sustain the suspension order, the DMV must determine “by the preponderanceof the evidence”(1) that a peace officer had “reasonable cause to believe” the driver was driving underthe influence of alcohol or drugs; (2) the driver was arrested (or, under circumstances inapplicable here, lawfully detained); (3) and, as applicable here, the driver was operating a motor vehicle when the driver “had 0.08 percent or more, by weight, of alcohol in her blood.” (§ 13557, subd. (b)(3)(A)(B)(C)(i).) “In ruling on a petition for writ of mandate following an order of suspension or revocation,a trial court is required to determine, based on its independent judgment, whether the weight of the evidence supported the administrative decision. [Citation.] .. . [Citation.] Under the independent judgmenttest, the court determines whether the administrative hearing officer abused his or her discretion because the findings are not supported by the weight of the evidence. [Citation.] The administrative 7 prove beyonda reasonable doubtthat at the time he was driving his blood alcohol exceeded 0.10 percent.” (Burg v. Municipal Court (1983) 35 Cal.3d 257, 265 (Burg).) “The effect of a presumption affecting the burden of producing evidenceis to require the trier of fact to assumethe existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.” (Evid. Code, § 604.) In other words, when met with “contradictory evidence,” the presumption “disappears.” (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 421.) The DMVobjects to this line of reasoning as “lessen[ing] the significance of”the 3-hour presumption,butit is unclear precisely how the DMV would characterize the presumption. The DMV cites the legislative history of the presumption,as set forth in Bell v. Department ofMotor Vehicles (1992) 1 1 Cal.App.4th 304, 311, as follows, “The stated need for the presumption arose from the absencein ‘[e]xisting law’ of any ‘provision for the delay involved between the time a personis arrested for a DUI and whenthe chemical test for BAC is actually administered,’ of any ‘means to determine a person’s BACatthe timethe person is actually driving the car,’ or of any ‘mention of time parameters for the administering of chemical tests and for their admission as admissable [sic] evidence into a court of law.’ [Citation.] Thus, in enacting the presumption, the Legislature intended (1) to ‘diminish the arguments that ha[d] arisen whenextrapolating the [BAC]at the timeof the test back to the time of the driving’ [citation], (2) ‘to close a potential loophole in the current law, whereby a person . . . could claim that he or she had consumed. . . alcohol which had not yet been absorbedinto the bloodstream while the person was operating the vehicle, but whichlater raised the blood alcohol level’ [citation], and (3) ‘to recognize that alcohol concentrations dissipate over time, so that a person whose blood alcohol levels exceed the permissible concentrations Substantial Evidence Supports the Trial Court’s Finding Substantial evidence supports thetrial court’s finding that the DMV met that burden. Thetrial court stated, “Even assumingthat petitioner Coffey rebutted the presumption under[section 23152, subdivision (b)], there was sufficient evidence based on the blood-alcohol tests and the other circumstantial evidence based on the assessment, observations andtests by the arresting officers at the scene to support the DMV hearing officer’s decision under the weight of the evidence.” The issue, boils down to whether non-chemicaltest circumstantial evidence can prove that Coffey’s BACat the time of driving was consistent with her BACat the time of her chemical tests. Based on Burg, supra, 35 Cal.3d at page 266, footnote 10, we holdit can. Burg addressed the constitutionality of section 23152, subdivision (b). In discussing the mannerofproving up an offense under section 23152, subdivision (b), the court specifically noted that circumstantial evidence is admissible to prove that the result of a test taken after driving reflected the driver’s BACat the time of driving: “Section 23152, subdivision (b), prohibits driving a vehicle with a blood-alcohollevel of 0.10 percent or higher; it does not prohibit driving a vehicle when a subsequent test shows a level of 0.10 percent or more. Circumstantial evidence will generally be necessary to establish the requisite blood-alcohollevel called for by the statute. A test for the proportion of alcohol in the blood will, obviously, be the usual type of circumstantial evidence, but of course the test is not conclusive: the defendant remains free to challenge the accuracy ofthe test result, the manner in which it was administered, and by whom. [Citations.] Ofcourse, both parties may also adduce other circumstantial evidence tending to establish that the defendant did or did not have a 0.10 percent blood-alcohol level while driving.” (Burg, supra, 35 Cal.3d at p. 266,fn. 10, italics added.) For this proposition Burg cited Fuenning v. Super. Ct. In & For Cty. of Maricopa (Ariz. 1983) 680 P.2d 121, which addressed various constitutional challenges I] testing procedures on file with the State Department of Health Services.” (Baker, supra, 98 Cal.App.4th at p. 1265.) This rebutted any presumptionthatthe test results were accurate, and the DMVfailed to present any evidence to establish their accuracy. As here, Baker exhibited objective signs of intoxication such as “an unsteady gait, bloodshot eyes, slurred speech, [and] a smell of alcohol.” (Jbid.) “The case thus quickly devolves to this question: Can a given amountof blood-alcohol level be established without a valid chemicaltest by evidence of behaviororindicia typically associated with intoxication, such as, like here, slurred speech, bloodshot eyes, or an unsteady gait?” “No.” (dd. at pp. 1265-1266.) In reaching that conclusion, however, the Baker court distinguished our situation where there is a valid BACtest. Baker distinguished prior opinions by noting they were focused “onthe question of whether a blood-alcohol test administered sometimeafter arrest could properly show a given blood-alcohol level while driving. (Of course non-chemicaltest evidence is available on that point, becauseit is a reasonable inference that a driver whois acting drunk at the timeofarrest has a higher blood alcohol at that time than at the time of the actual administration of the chemical test.)” (Baker, supra, 98 Cal.App.4that p. 1272.) The Baker court then appended a footnote that providesanotherrelevant point to our case: “A corollary to this commonsensepointis that non-chemical test circumstantial evidence can shed light on whether the margin of error in a chemical test makes any difference.” (/d. at p. 1269, fn. 2.) Thus Baker does not help Coffeyat all. In People v. Beltran, supra, 157 Cal.App.4th 235, based on BACtests indicating rising blood alcohol, both the defense and prosecution expert opined the defendant’s BACat the timeof driving could have been as low as 0.068 percent. The prosecution expert opined defendant’s BAC could have been as high as 0.09 percent. (Id. at p. 239.) The issue in Beltran was whether, in a criminaltrial, given the evidenceat hand, it was error to instruct the jury on the 3-hour presumption. Based on a 13 pp. 372-373.) In addition to being in a different procedural posture, we note that in Brennerthere was no valid, undisputed BACtest at 0.08 percent or above, and thus the court’s rejection of the circumstantial evidence is consistent with the holding in Baker. In reaching the conclusion that the circumstantial evidence here was sufficiently substantial to support the trial court’s ruling, we hasten to add that nothing about our opinion compels a fact finder to accept any particular combination of signs of intoxication as proving a particular BACatthe time of driving. Trial courts must independently weigh the evidence andreach their own conclusions. Our holdingis limited to the proposition that such evidence constitutes substantial evidencesufficient to sustain such a finding in the presence of a valid BACtest taken a reasonable time after driving. DISPOSITION The judgmentis affirmed. Coffey’s petition for a writ of supersedeasis dismissed as moot. The DMV shall recoverits costs on appeal. IKOLA,J. WE CONCUR: BEDSWORTH, ACTINGP.J. MOORE,J. 15 COURT OF APPEAL - STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE ASHLEY JOURDANCOFFEY, Plaintiff and Appellant, COURT OF “ ° oi S GIST Divg Vv. SEP 09 2013 JEAN SHIOMOTO,as Chief Deputy Director, etc. 2x»y cer Re Defendant and Respondent. G047562 Orange County No. 30-2012-00549559 THE COURT: The petition for rehearing is DENIED. IKOLA,J. IKOLA,J. WE CONCUR: BEDSWORLY ACTING PJ, MOORE, ;4. cc: See attachedlist iit ti fo Pr ID) a Wf) |